The commission also overturned the firing of another police officer, Milford Adams, who was accused of allowing a woman to trade a sex act for her freedom. After a jury found Adams not guilty at a criminal trial, the commission rescinded all internal discipline against him, leaving him with a clean employment record.
The criminal case against Adams began with an anonymous call to internal affairs around 5 a.m. July 23, 2004, according to an internal complaint issued by then-Chief Nannette Hegerty. The caller, who was never identified, said a police officer and a woman were engaged in sexual activity in an unmarked squad car, according to a summary of the internal investigation. The caller also provided the license plate number. The plates came back to Adams’ car. Records showed Adams had run a check on a woman around the same time, learning there was a warrant out for her arrest on a probation violation. She also had a history of drug and prostitution arrests.
The woman told authorities Adams stopped her while she was walking near a convenience store at S. 11th St. and W. Greenfield Ave. He searched her by untucking her shirt and telling her to bend over, according to a criminal complaint. He found a crack pipe hidden in the back of her underwear.
When the woman tried to talk her way out of being arrested, Adams reclined the car seat and told her, “You know what to do,” according a transcript of her testimony in the criminal case.
“He’s an officer with a gun,” she testified. “I assumed it was safer for me to do what he wanted me to do than not. I could tell this wasn’t exactly a cut and dry arrest.”
After she touched him sexually, he let her go, she said.
“He let me out the door and he drove off,” she testified. “I went inside the Open Pantry, and I cried and hyperventilated, and tried to drink a soda and got my wits about me and waited about a half an hour and then I left.”
During an interview with internal investigators, Adams denied having sexual contact with the woman, the summary says.
“He released her on the condition that she give him information on drug houses in the future,” the summary says. “He later threw the crack pipe in the Dumpster at District 2.”
Internal investigators deemed the woman credible, and the district attorney’s office agreed. Prosecutors initially charged Adams in March 2005 with encouraging a violation of probation, a misdemeanor. Milwaukee County Circuit Judge Kevin Martens granted a defense motion to dismiss the charge because simply failing to arrest someone wanted on a probation violation does not constitute encouraging the violation, court records show.
Authorities worked to build a better case, and in January 2007 prosecutors issued a second criminal complaint regarding the same incident. This time, they charged Adams with felony misconduct in public office and three misdemeanors: disorderly conduct, lewd and lascivious behavior, and encouraging a probation violation, according to court records. Prosecutors dismissed the charge of lewd and lascivious behavior prior to trial. Milwaukee County Circuit Judge William Brash granted a defense motion to dismiss the charge of encouraging a probation violation.
A jury acquitted Adams on the other two charges in January 2008.
Kent Lovern, chief deputy district attorney, did not respond to questions about the case.
Both Adams and the woman testified before the Fire and Police Commission seven months later, according to commission documents. The hearing focused on whether Adams violated the department rule against violating state law and whether he mistreated the woman.
“Given (the woman’s) extensive criminal history and her record of inconsistent and less than credible testimony in this and other forums, we find her uncorroborated testimony to be insufficient to serve as a basis for a finding of fact that rule violations were committed,” the commission’s decision says.
The commission also found that whether to arrest the woman was within Adams’ discretion, and not doing so was not a violation of department rules.
The woman is identified in court records, but the Journal Sentinel was unable to locate her.
Adams works the night shift in District 1, according to his personnel record.
‘Just cause’ for firing?
Most union workers, including Milwaukee police officers, can be fired or otherwise disciplined only for “just cause,” according to Paul Secunda, an associate professor at the Marquette University Law School who specializes in labor law.
Breaking the law may or may not qualify, depending on the circumstances. The infractions that most often qualify for discipline or dismissal under the “good cause” standard include chronic lateness, absenteeism and insubordination, Secunda said.
On the other hand, nonunion workers, who make up the majority of the private sector, are employed at will, which means they can be fired for a good reason, a bad reason or no reason at all, Secunda said.
For Milwaukee police officers, it is up to the Fire and Police Commission to determine whether the “just cause” standard has been met. Commissioners conduct their own investigation, but they also may consider what happened in the internal affairs investigation, said Tobin, the executive director.
Because Adams was found not guilty in criminal court, it would have been difficult for the commission to conclude he broke the law, Tobin said.
Perhaps discipline would have been upheld if Hegerty, who was chief at the time, had chosen to punish Adams for some other rule violation, Tobin said.
That’s the route Milwaukee Police Chief Edward Flynn took with Cates, whose appeal hearing is pending.
Although federal authorities are investigating Cates for potential crimes, Flynn fired him for lying and for idling and loafing, not for breaking the law. This means the commission could uphold the punishment even if Cates is not criminally charged, or if he is charged and acquitted.
March 27, 2011
Powerful commission can restore officers’ jobs
Panel is more powerful than groups in most cities
By GINA BARTON
The future of fired Milwaukee Police Officer Ladmarald Cates is in the hands of the civilian Fire and Police Commission, which has the power to give him his job back.
Cates was fired in December after a woman accused him of raping her in the wake of a 911 call. He has appealed his dismissal, and a hearing before the commission is pending. Federal authorities opened an investigation after the Milwaukee County district attorney’s office declined to file criminal charges.
Put in place 125 years ago to keep politics out of policing, the commission has the authority to do its own investigations and to overturn punishments imposed by the chief. It has significantly more power than many similar groups throughout the country, which can only advise their chiefs, according to Executive Director Michael G. Tobin.
In deciding whether Cates’ firing was justified, the commission is allowed to consider his past record with the department, including complaints dismissed by internal affairs, Tobin said.
Cates has been investigated by internal affairs for possible crimes five times before, according to department records. The five are among 13 department reviews of Cates since 1998.
He was disciplined by the department in connection with seven of those incidents. Twice, the discipline was reduced through arbitration.
Disciplinary appeal hearings before the commission are similar to trials, although the rules of evidence are more lenient, Tobin said. There also is a lower standard of proof.
In a criminal court, jurors must be convinced of guilt “beyond a reasonable doubt.” Before the commission, the standard is “preponderance of the evidence,” which translates to “more likely than not,” Tobin said.
Even so, the commission has reduced some three dozen disciplinary actions against police officers and firefighters after 68 hearings in the past five years. In one of those, the commission originally upheld the discipline, but its decision was overturned by the Circuit Court.
Commissioners, appointed by the mayor and approved by the Common Council, take the role of jurors. There are six commissioners, plus one vacancy. Based on their availability, panels of three are chosen to hear each disciplinary appeal.
Three officers now serving on the force — Scott D. Charles, Reginald L. Hampton and Milford Adams — were disciplined by the department after women accused them of on-duty sexual misconduct. Charles was suspended for 60 days and did not appeal. The other two were fired but reinstated after commission hearings.
None of the members serving today was on the commission in 1993, when Hampton’s firing was overturned. Two different women had accused Hampton of sexual assault, one in 1990 and one in 1991.
Two of the current commissioners served on the panel that reinstated Adams in 2008, after he was acquitted by a jury in a criminal case. Like the criminal jury, the commission panel questioned the credibility of the woman who accused Adams of sexual misconduct.
“What I’ve seen is they really try to take each case individually regardless of what the discipline has been, and they do a really good job of making an independent finding,” Tobin said of the commissioners. “We have a board right now that has demonstrated a lot of common sense and really brings the viewpoint of their part of the community.”
Attorney Jonathan Safran, who has represented numerous victims of police brutality, said the commission’s process for dealing with disciplinary appeals remains flawed despite the changes.
“It’s still a very cumbersome process,” he said. “I am one who continues to believe there needs to be a totally independent agency with no political ties at all to hear these appeals.”
Changes at commission
In addition to getting a new slate of commissioners in recent years, the commission underwent a major reorganization in 2008, Tobin said. Two independent investigators now handle citizen complaints to the commission. In the past, the commission simply referred such complaints to the Police Department. People who are uncomfortable filing a complaint at a police station or at City Hall now can do so at social service agencies.
The commission also has hired a research analyst who studies trends within the department, including misconduct complaints, use of force and vehicle pursuits. Some of those reports have resulted in improved training for officers, Tobin said.
Also in 2008, the commission eliminated a backlog of some 30 disciplinary appeals for police and firefighters, Tobin said. Commissioners convened a total of 35 hearings that year, reducing 18 of the punishments.
Police officers no longer have incentive to delay their hearings, since the state Legislature has ended the practice of paying fired Milwaukee officers while appeals are pending.
The changes at the commission have led to fewer complaints to his office about problem police officers, said Ald. Bob Donovan, chairman of the Common Council’s Public Safety Committee.
“Evidently something that they’re doing over there is working or helping in terms of complaints about police behavior,” he said.
What panel weighs
Under state law, the Fire and Police Commission must consider these seven questions when determining whether an officer was appropriately disciplined:
1. Could the officer have been reasonably expected to know the consequences of the conduct?
2. Was the rule the officer is accused of violating reasonable?
3. Did internal affairs conduct a thorough investigation before imposing the discipline?
4. Was the internal affairs investigation fair and objective?
5. Was there enough evidence gathered during the internal affairs investigation to support the charge?
6. In handing down the discipline, did the chief apply the rule fairly and without discrimination?
7. Does the severity of the punishment reflect the seriousness of the violation?
The civilian members of the Fire and Police Commission are:
• Richard C. Cox, commission chair, executive director of Neighborhood House, a social service agency that assists urban families; worked for the Milwaukee County sheriff’s office for 17 years in numerous positions, ranging from deputy to administrator of detention services. Also spent nine years as superintendent at the House of Correction.
• Kathryn Hein, assistant director of the Les Aspin Center for Government at Marquette University
• Carolina Maria Stark, administrative law judge for the state Department of Workforce Development
• Paoi X. Lor, program coordinator and consultant for Hmong ABC Radio in Milwaukee
• Sarah Morgan, assistant professor of nursing at the University of Wisconsin-Milwaukee
• Michael M. O’Hear, a professor and associate dean for research at Marquette’s law school
All of these commissioners were appointed after discipline was finalized against Scott D. Charles and Reginald L. Hampton. Hein and Stark were members of the panel that overturned the firing of Milford Adams in August 2008. The others were not.
Source: City of Milwaukee website, Fire and Police Commission records
Fired Milwaukee police officer charged in rape case
He’s accused of sexually assaulting woman after she called 911
By GINA BARTON and JOHN DIEDRICH
A fired Milwaukee police officer was charged Tuesday with raping a woman after he responded to her 911 call in July.
Ladmarald Cates faces a maximum possible penalty of life in prison if convicted of the two federal felonies, which include violating the woman’s civil rights while acting under the color of law and using a firearm in the commission of an act of violence, the indictment says.
The first count includes enhancers for causing bodily injury and aggravated sexual abuse, according to Assistant U.S. Attorney Mel Johnson, who is handling the case.
Attorney Robin Shellow, who represents the victim, called Johnson “my hero.”
“With a kind and gentle hand he has made my client’s cry in the dark the beam of justice in the future,” she said. “On behalf of my client, I want to thank the U.S. attorney’s office and those who worked with them for treating her with respect and dignity.”
Cates’ attorney, Bridget Boyle, said she has been aware for some time that federal prosecutors were considering an indictment. Cates plans to fight the charges, she said.
“Mr. Cates has every intention to proceed to a jury trial to have them decide whether he violated the law,” she said.
Shellow’s client said Cates raped her and forced her to perform oral sex after he responded to her 911 call about teenagers trying to kick in the door of her north side home.
In an earlier interview with the Journal Sentinel, the woman said numerous officers — on the scene and at the police station — accused her of lying when she begged for help and asked them to take her to the hospital. She spent about 12 hours in jail before being interviewed by internal affairs, the newspaper reported in January. Only after that was she taken to the hospital for treatment and evidence collection.
Cates first denied any sexual activity between them but later admitted to internal affairs investigators they had sex, according to records.
Police Chief Edward Flynn ultimately fired Cates for lying and for “idling and loafing” because having sex on duty is against department rules.
The Journal Sentinel does not name victims of sexual assault.
DA declined to prosecute
The U.S. attorney’s office and FBI began investigating Cates after the Milwaukee County district attorney’s office declined to charge him.
In a letter to Flynn, Assistant District Attorney Aaron E. Hall said he believed the woman’s account but didn’t think he would be able to prove a sexual assault case in court.
“While I did find the victim’s version of events credible, I did not believe that her testimony would be strong enough to successfully prosecute Officer Cates,” Hall wrote in October.
The district attorney’s office also considered, but ultimately rejected, a state charge of misconduct in public office, Chief Deputy District Attorney Kent Lovern said at the time.
On Tuesday, Lovern said his office has prosecuted numerous police officers for various offenses, including Steven Lelinski, a former officer now in prison for on-duty sexual assaults.
“There are cases that could be subject to state jurisdiction that are more appropriate for prosecution by federal authorities,” Lovern said. “This (the Cates case) is a case where we were unable to bring state charges, but the U.S. attorney was able to bring federal charges. That is the way the system is supposed to work.”
Federal investigators believe the woman’s allegations are both true and provable, Johnson said Tuesday.
“It seemed to us from the very beginning to be credible and serious enough to be worth investigating,” he said. “We got to the point, after further investigation, where we felt we could prove it beyond a reasonable doubt.”
Cates, 43, was fired in December. No other officers were disciplined in connection with the incident.
In February, a Journal Sentinel investigation revealed Cates had been accused of breaking the law five times before. Three of the previous allegations involved sexual misconduct — two with female prisoners and one with a 16-year-old girl. The incidents date to 2000, three years after he was hired by the department.
Internal investigators referred Cates to the district attorney’s office for possible charges in two cases. The district attorney’s office did not prosecute Cates on allegations of having sex with the 16-year-old. In the second case, a domestic violence battery in which his then-girlfriend said Cates shoved and choked her, prosecutors offered a diversion agreement.
A conviction on a domestic violence charge would have prevented Cates from carrying a gun under federal law and resulted in his removal from the force. The one-year diversion agreement allowed Cates to avoid charges by refraining from criminal activity, avoiding violent contact with the victim and undergoing counseling.
Flynn, who took over as chief in 2008, acknowledged in February that a computerized early-intervention system designed to identify potentially troubled officers didn’t flag Cates.
“It is clear to me looking at this employee’s record that from a management point of view an obvious pattern was overlooked,” Flynn said at the time. “The department did not see the forest for the trees here.”
Department managers now analyze employee behavior the same way they analyze crime, using data to evaluate officer performance. Weekly, they review indicators such as sick time. Quarterly, they delve into issues such as citizen complaints, Flynn said in February.
Shellow said both the Police Department and the district attorney’s office should be “ashamed and embarrassed” for failing to protect the public from Cates.
“Each of those agencies knew the officer had committed acts of sexual misconduct with women and did nothing,” she said. “Had they done something, my client would not have been raped.”
It’s a conflict of interest for the Milwaukee Police Department to investigate its own members, Shellow said.
In an email Tuesday, department spokeswoman Anne E. Schwartz said: “The first time then-Officer Cates came before Chief Flynn for a fireable offense, he was fired.”
Cates, who is not in custody, is expected to make his first court appearance Sept. 30, Johnson said.
Jesse Garza of the Journal Sentinel staff contributed to this report.